Nyasulu v Naikelekele - [2022] NSWDC 507

District Court

New South Wales

Medium Neutral Citation: Nyasulu v Naikelekele [2022] NSWDC 507
Hearing dates: 25 October 2022
Date of orders: 27 October 2022
Decision date: 27 October 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1)   Defendant’s application for summary dismissal on the basis that the concerns notice is invalid is dismissed.
(2)   Costs reserved.
(3)   These proceedings listed for directions in the Defamation List on 10 November 2022 for a timetable for further pleadings.

Catchwords:
TORT - defamation - plaintiffs bring proceedings for 12 social media posts on their Church website by a former Church member saying they are devils running a satanic cult - plaintiffs’ concerns notice sets out serious harm and imputations collectively rather than on a publication by publication basis - whether particulars capable of amounting to serious harm - whether the “consensus” of modern public opinion means that the imputations pleaded are incapable of defamatory meaning let alone serious harm - whether serious harm in the statement of claim adequately particularised - application for summary dismissal dismissed

Legislation Cited:
Defamation Act 2005 (NSW), s 3, s 10, s 12A, s 12B, s 35(2B), s 37
Libel & Slander Act RSO 1990 C. L. 12 (Ontario)
Uniform Civil Procedure Rules 2005 (NSW), r 7.36

Cases Cited:
Bangash v Patel [2021] ONSC 76
Beckingham v Browne [2021] VSCA 362
Bong Bong Town Centre v Illawarra Clay Target Club [2015] NSWSC 316
Falkenberg v Nationwide News Pty Ltd
Gantry Acquisitions Corp v Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 FCR 554
Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682
Loukas v Young [1968] 3 NSWR 549
MannaiInvestment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
Mohareb v Booth [2020] NSWCA 49
Peschmann v Quayle WD, Pa., 13 August 2019
Prospect Resources Ltd v Molyneux [2015] NSWCA 171
Rossi Recycling Pty Ltd v Buckland Valley Pty Ltd [2022] VSC 467
Salta Constructions Pty Ltd v St George Bank (2014) 45 VR 245
Sube v News Group (No 2) [2018] EWHC 1961 (QB)
Tabbaa v DailyMail.com Australia Pty Ltd (ACN 166 912 465) [2015] NSWDC 278
The Baptist Union of New South Wales v Georges River Council [2017] NSWSC 347
Tyco Fire & Security & Anor v Norfolk Mechanical & Ors [2007] NSWSC 585
WIC Radio v Simpson [2008] 2 SCR 420
Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283

Texts Cited:
Council of Attorneys-General Review of the Model Defamation Provisions - Background Paper (December 2019, p. 25)

Category: Procedural rulings
Parties: Gerald Joseph Mphazi Nyasulu(First Plaintiff)
Ulemu Sithembile Nyasulu (Second Plaintiff)
Sereana Naikelekele (Defendant)
Representation:
Counsel:
Mr D Sibtain SC (plaintiffs)
Ms P Hart (defendant)
Solicitors:
Atkinson Vinden Lawyers (plaintiffs)

File Number(s): 2022/00267201
Publication restriction: None

Judgment

The proceedings before the court

The plaintiffs are the founders and leaders of Streams International (“Streams”), a prophetic ministry which operates in New South Wales, Queensland and South Australia. The defendant is a former member…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWDC 507
Decision Date: 27 October 2022

CaseChat Overview and Summary

The plaintiffs, Nyasulu and another, brought proceedings against the defendant, Naikelekele, for defamatory statements made in twelve social media posts on their Church website. The posts, authored by a former Church member, accused the plaintiffs of being devils running a satanic cult. The matter was heard in the Supreme Court of Queensland. The court was required to determine whether the particulars in the concerns notice were capable of amounting to serious harm, whether the consensus of modern public opinion meant that the imputations pleaded were incapable of defamatory meaning, and whether the statement of claim adequately particularised serious harm.

The court found that the concerns notice was valid and capable of supporting a cause of action for defamation. The court held that the plaintiffs' concerns notice, which outlined the serious harm and imputations collectively, was sufficient. The court found that the consensus of modern public opinion did not render the imputations incapable of defamatory meaning. Furthermore, the court held that the statement of claim adequately particularised serious harm. The court dismissed the defendant’s application for summary dismissal.

The court ordered that the defendant’s application for summary dismissal be dismissed, with costs reserved. The court listed the proceedings for directions in the Defamation List on 10 November 2022 for a timetable for further pleadings.

Orders

Orders of the court

(1) Defendant’s application for summary dismissal on the basis that the concerns notice is invalid is dismissed.

(2) Costs reserved.

(3) These proceedings listed for directions in the Defamation List on 10 November 2022 for a timetable for further pleadings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Nyasulu v Naikelekele [2022] NSWDC 507
Hearing dates:	25 October 2022
Date of orders:	27 October 2022
Decision date:	27 October 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendant’s application for summary dismissal on the basis that the concerns notice is invalid is dismissed. (2) Costs reserved. (3) These proceedings listed for directions in the Defamation List on 10 November 2022 for a timetable for further pleadings.
Catchwords:	TORT - defamation - plaintiffs bring proceedings for 12 social media posts on their Church website by a former Church member saying they are devils running a satanic cult - plaintiffs’ concerns notice sets out serious harm and imputations collectively rather than on a publication by publication basis - whether particulars capable of amounting to serious harm - whether the “consensus” of modern public opinion means that the imputations pleaded are incapable of defamatory meaning let alone serious harm - whether serious harm in the statement of claim adequately particularised - application for summary dismissal dismissed
Legislation Cited:	Defamation Act 2005 (NSW), s 3, s 10, s 12A, s 12B, s 35(2B), s 37 Libel & Slander Act RSO 1990 C. L. 12 (Ontario) Uniform Civil Procedure Rules 2005 (NSW), r 7.36
Cases Cited:	Bangash v Patel [2021] ONSC 76 Beckingham v Browne [2021] VSCA 362 Bong Bong Town Centre v Illawarra Clay Target Club [2015] NSWSC 316 Falkenberg v Nationwide News Pty Ltd Gantry Acquisitions Corp v Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 FCR 554 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Loukas v Young [1968] 3 NSWR 549 MannaiInvestment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 Mohareb v Booth [2020] NSWCA 49 Peschmann v Quayle WD, Pa., 13 August 2019 Prospect Resources Ltd v Molyneux [2015] NSWCA 171 Rossi Recycling Pty Ltd v Buckland Valley Pty Ltd [2022] VSC 467 Salta Constructions Pty Ltd v St George Bank (2014) 45 VR 245 Sube v News Group (No 2) [2018] EWHC 1961 (QB) Tabbaa v DailyMail.com Australia Pty Ltd (ACN 166 912 465) [2015] NSWDC 278 The Baptist Union of New South Wales v Georges River Council [2017] NSWSC 347 Tyco Fire & Security & Anor v Norfolk Mechanical & Ors [2007] NSWSC 585 WIC Radio v Simpson [2008] 2 SCR 420 Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283
Texts Cited:	Council of Attorneys-General Review of the Model Defamation Provisions - Background Paper (December 2019, p. 25)
Category:	Procedural rulings
Parties:	Gerald Joseph Mphazi Nyasulu(First Plaintiff) Ulemu Sithembile Nyasulu (Second Plaintiff) Sereana Naikelekele (Defendant)
Representation:	Counsel: Mr D Sibtain SC (plaintiffs) Ms P Hart (defendant) Solicitors: Atkinson Vinden Lawyers (plaintiffs)
File Number(s):	2022/00267201
Publication restriction:	None